This session explores the future of the 1978 Equal Employment Opportunity Commission’s (EEOC) Uniform Guidelines on Employee Selection Procedures (“Uniform Guidelines”), in light of the 2025 Trump Administration Executive Order 14281 and a 2026 legal opinion by the US Department of Justice claiming that the concept of “disparate impact” is unconstitutional. Given these developments, the underlying issue about the legality of “disparate impact” is likely to end up before the United States Supreme Court.

The results-oriented “disparate impact” definitions of employment discrimination were not found in Title VII of the Civil Rights Act of 1964 but instead were “created” by the unanimous US Supreme Court’s decision in Griggs v Duke Power in 1971. The EEOC used Griggs as the predicate to establish the statistical 4/5ths rule and related adverse impact definitions of employment discrimination in the Uniform Guidelines.

The Uniform Guidelines have provided critical guidance for decades that supports objective, defensible, and consistent employment decisions and how organizations can design and implement selection procedures, especially psychological tests, that are demonstrably job-related and consistent with principles of equal employment opportunity. Rescinding these Guidelines without an appropriate replacement would create uncertainty and inconsistency across organizations, undermining the quality and integrity of selection practices.

Presenter Jim Sharf was the EEOC’s chief industrial psychologist who negotiated and drafted the Uniform Guidelines, while Alise Dabdoub is currently chair of the ATP Industrial/Organizational Division. Alan Thiemann is ATP’s General Counsel.